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‘Bad’ Legal Advice and the Death Penalty

WASHINGTON, Nov. 5 — Eighteen years have passed since an Idaho murder defendant took his lawyer’s advice to reject the state’s offer of a guilty plea that would have resulted in a life sentence. The defendant, Maxwell Hoffman, went to trial instead, and was sentenced to death for participating in the murder of a government informer.

A federal appeals court eventually ruled that the lawyer’s advice reflected such bad judgment as to fall below the Sixth Amendment’s guarantee of the effective assistance of counsel. On Monday, the Supreme Court announced that it would use the case to decide how appellate courts are to evaluate claims of ineffective assistance of counsel in plea negotiations.

To that question, posed by Idaho’s attorney general in the state’s appeal, the justices added a question of their own: What should the remedy be for bad legal advice during plea negotiations if the defendant is later convicted and sentenced after a fair trial?

In its opinion, issued in July 2006, the United States Court of Appeals for the Ninth Circuit granted Mr. Hoffman’s petition for a writ of habeas corpus and gave Idaho the choice of offering him the same plea agreement that he turned down in 1989 or releasing him from confinement.

The Idaho attorney general, Lawrence G. Wasden, is arguing in that state’s appeal that the Ninth Circuit incorrectly concluded that Mr. Hoffman’s legal representation was unconstitutionally deficient. A defendant should have to show not just bad judgment but “gross error” by the defense lawyer, the state’s brief maintains, explaining that such a high standard is needed to keep appellate courts from second-guessing a defense strategy with the benefit of hindsight.

Although a 1970 Supreme Court decision, McMann v. Richardson, referred to a “gross error” standard, the court has not elaborated on that requirement in the intervening decades. Mr. Hoffman’s current lawyers are arguing that the court effectively rejected that standard in 1984, when it decided the case that has provided the modern framework for evaluating claims of ineffective assistance of counsel.

The 1984 case, Strickland v. Washington, requires defendants to prove both “cause” — a quality of legal representation that is objectively deficient — and “prejudice,” proof of harm from the lawyer’s behavior. In 2003, the court applied the Strickland case to overturn the sentence of a man on Maryland’s death row on the ground that the defense lawyer had failed to investigate and present to the jury facts of his client’s personal history that could have led jurors to spare his life.

In the new case, Arave v. Hoffman, No. 07-110, the Ninth Circuit concluded that Mr. Hoffman had met both prongs of the Strickland test. The court found that Mr. Hoffman’s court-appointed lawyer, William Wellman, who had never before handled a murder case, failed to conduct “reasonable research into the legal landscape” before advising his client to reject the guilty plea. The appeals court also found a “reasonable probability that the outcome of the proceedings would have been different had counsel acted competently.”

It was the defense lawyer’s misfortune to receive the assignment in Mr. Hoffman’s case at a moment when death-penalty law was in a particularly high state of flux. Just six weeks before Idaho offered the plea bargain to Mr. Hoffman, the Ninth Circuit had invalidated Arizona’s death penalty law on the ground that it gave too much fact-finding power to the judge. Since Idaho’s death penalty law was indistinguishable, and Idaho is also in the Ninth Circuit, Mr. Wellman reasoned that even if his client received a death sentence, it would be overturned on appeal.

However, Mr. Wellman was unaware that four days before the plea bargain was offered, the Arizona Supreme Court, in a separate case, had rejected the Ninth Circuit’s reasoning and had upheld the Arizona death penalty statute. This decision injected a good deal of ambiguity and made it likely that the United States Supreme Court would resolve the conflict. In fact, the next year, the justices upheld the Arizona law.

“We do not fault Wellman for failing to predict the outcome of these divergent opinions,” Judge Harry Pregerson said in the Ninth Circuit’s opinion in Mr. Hoffman’s case. “We do not expect counsel to be prescient about the direction the law will take,” he added. Nonetheless, the appeals court concluded, the lawyer “vastly underestimated” the chance that his client would be sentenced to death if he rejected the plea bargain.

Idaho is arguing in its appeal that the Ninth Circuit relied on “impermissible hindsight” in reaching this conclusion. “Counsel are not required to guess what may happen regarding future court decisions,” Mr. Wasden, the state attorney general, told the justices, adding that, given the “unsettled” state of the law, “Wellman’s advice was not objectively unreasonable.”

A version of this article appears in print on , on Page A22 of the New York edition with the headline: ‘Bad’ Legal Advice and the Death Penalty. Order Reprints|Today's Paper|Subscribe